FCC Privacy Rule Foes: Time for Hill Reset

Groups representing ISPs, tech companies and online advertisers said Tuesday that congressional repudiation of the FCC's broadband privacy framework was a "vital step" toward creating a "truly comprehensive and effective privacy framework for the entire Internet based on the successful FTC approach."

They also suggested talk of the collapse of privacy protections in the absence of the yet-to-be applied rules had a Chicken Little flavor to them.

That came in a conference call with reporters moderated by Jon Leibowitz, former chairman of the FTC under President Obama and now co-chair of the ISP-backed 21st Century Privacy Coalition.

Also on the call were James Assey, EVP at NCTA; B. Lynn Follansbee, VP, law and policy, USTelecom; Jim Halpert, general counsel, Internet Commerce Coalition; Julie Kearney, CTA; Emmett O’Keefe, SVP of advocacy, DMA; and Howard Waltzman, general counsel, 21st Century Privacy Coalition; and Maria Kirby of CTIA.

The press conference came less than two hours before the House is scheduled to vote on a Congressional Review Act resolution to repeal the rules that squeaked through the Senate last week 50 to 48. Backers of the rules were trying to rally supporters this week, saying they thought there was a good chance the House would not follow suit and pass the resolution, though that might have been wishful thinking.

The call participants signaled they thought the resolution would indeed pass, but were taking no chances, making their case in an hour-plus call with reporters from a host of outlets.

The thrust of the call was that rolling back the regs would allow for a "reset" -- a term at least three different speakers used -- to "harmnize" broadband privacy enforcement could be "harmonized" across ISPs and edge providers so that consumers would have consistent treatment of their online data, preferably a "privacy by design" approach based on the sensitivity of data, and preferably not what they saw as the FCC's overly broad classification of that sensitive data to include app use and Web browsing history.

Assey said that once the FCC rules are rolled back, there are "multiple pathways to get back to consistent treatment," but that however the FCC, FTC and Congress decide to do that, "we as ISPs have an interest in protecting the privacy of consumers and have an interest in getting policy back to one that applies consistently online. We think that is in the best interests of fair competition and, ultimately, of consumers."

Leibowtiz pointed out that in 2012, when he was chair of the Obama Administration FTC, the agency came out with a privacy report that called for the FTC to be the sole privacy enforcement agency across the entire broadband ecosystem. He said his coalition is a strong supporter of consumer privacy and "firmly believes that companies operating online must maintain transparency, disclose what consumer data is being collected and how it is being used and held accountable for honoring commitments to consumers."

As to the strong pushback from some privacy groups, Leibowitz chalked the "hyperbole" and "overheated rhetoric" surrounding the FCC rules to "hyperpartisan Washington."

Halpert said it's common for advocates on one side of the issue to claim the world would collapse, and a little bit of that was going on regarding IPS and privacy.

He said several layers of privacy protection will remain after the rules. That includes ISPs privacy principle commitments, which the federal and state governments can enforce if they are violated. He said there were "ample rules" at the state level. None of that would change if the House passed, as they expected it would, the CRA.

The FCC's privacy framework was adopted Oct. 27, 2016, under Democratic chairman Tom Wheeler and against the dissents of the two FCC Republicans now in the majority. Congressional Republicans pushed for the rollback, backed by ISPs, advertisers and consumer electronics companies.